Property Rights and Genetic Engineering - University of Notre Dame


Dec 10, 2012 (5 years and 5 months ago)


Science and Engineering Ethics (2005) 11, 137-149
Science and Engineering Ethics, Volume 11, Issue 1, 2005 137

Keywords: agriculture, biotechnology, chemical, corporation, developing nation, food, gene,
green revolution, Locke, Monsanto, patent, pesticides, property rights, labor, rights, risk

ABSTRACT: Eighty percent of (commercial) genetically engineered seeds (GES) are
designed only to resist herbicides. Letting farmers use more chemicals, they cut labor
costs. But developing nations say genetically engineered seeds cause food shortages,
unemployment, resistant weeds, and extinction of native cultivars when “volunteers”
drift nearby. While GES patents are reasonable, this paper argues many patent
policies are not. The paper surveys GE technology, outlines John Locke’s classic
account of property rights, and argues that current patent policies must be revised to
take account of Lockean ethical constraints. After answering a key objection, it
provides concrete suggestions for implementing its ethical conclusions.

Even after thousands of years, seeds from Egyptian tombs have remained viable.
Believing they were magical, our ancestors knew that whatever threatened seeds
threatened them. We know it too. Farmers in developing nations say their lives and
food are threatened by genetically engineered seeds (GES). Condemning biotechnology
profits and GES-induced extinctions of indigenous crop species, they attack policies
such as granting patents to GES, not labelling GE food, and following World Trade
Organization protections of GES. Representatives of 18 African nations recently
charged, at a UN Food and Agriculture Organization meeting: “gene technologies...will
undermine our capacity to feed ourselves.”
This paper addresses one prominent subset of GES conflicts, those over property
rights. After providing background on GES and outlining John Locke’s classic account
of property rights, the paper argues that current patent policies regarding life forms,
like genes, must be revised to accommodate Lockean ethical requirements – that
society claims to accept. The paper answers a key objection to these arguments, then
suggests several practical strategies for implementing its ethical conclusions.

Address for correspondence: Kristin Shrader-Frechette, O’Neill Family Professor, Department o

Philosophy and Department of Biological Sciences, 100 Malloy Hall, University of Notre Dame,
otre Dame, IN 46556, USA; email: Kristin.Shrade

1353-3452 © 2005 Opragen Publications, POB 54, Guildford GU1 2YF, UK.

Property Rights and Genetic Engineering:
Developing Nations at Risk

Kristin Shrader-Frechette
University of Notre Dame, Indiana, USA

K. Shrader-Frechette
138 Science and Engineering Ethics, Volume 11, Issue 1, 2005

In its broadest sense, “genetic engineering” includes uncontroversial techniques, like
selective breeding. In its narrower sense, used here, GE refers to gene splicing –
techniques for inserting DNA fragments from one organism’s genes into the
chromosomes of another, thereby changing its genetic makeup. In 80 percent of all
GES crops, such splicing is done only to make them herbicide resistant; the remaining
20 percent of GES crops are engineered to resist disease.
No commercially used GES
crops increase yield or drought tolerance,
in part because such engineering is more
difficult than designing pesticide resistance. Enabling farmers to apply more chemicals,
pesticide-resistant GES reduce labor costs. At least in developed countries, Monsanto’s
Roundup-Ready (RR) soy, for example, has lower production costs than non-RR soy,
largely because of lower labor costs.
Because 80 percent of GES crops are
bioengineered only for pesticide resistance, it is not surprising that the top 5 biotech

(Monsanto, Astra-Zeneca, DuPont, Novartis, and Aventis) are chemical
companies. They control nearly 100 percent of the GES market and 25 percent of the
commercial seed market.

At least since 1996 when Monsanto launched its first GES, RR soy, it has
dominated GES markets. Largely because of its “flagship” product, Roundup, it
annually grosses more than US $5.5 billion, more than the GNP of most developing
countries. RR soy accounts for 58 percent of total GM crops, followed by transgenic
corn, cotton, and canola. Argentina, the US, and Canada are the main GES users. In
Argentina, 95 percent of all soybeans are transgenic; in the US, 54 percent. From 1996
to 2000, global GES cropland rose 2500 percent, to 100 million acres. One-fourth of
US crop land is planted in GES. Globally, an area larger than the UK is planted just
with herbicide-resistant GES soy, corn, and canola. Not counting other Monsanto
profits, year-2000 sales of Roundup were $3 billion, mostly for use on legally protected
RR GES crops.

Proprietary GES technologies are legally safeguarded through patents. Like
copyrights, they are intellectual property rights (IPR) – rights to control production and
use of things, like songs, for a limited time, like 17 years. Because IPR can be shared
without reducing abilities to use them, economists call them “nonrivalrous goods.”
Historically, society gave inventors IPR in exchange for public disclosure (making new
knowledge available) and avoiding trade secrecy. Today, however, many countries like
the US allow IPR to keep inventions from the market. In the US, since the 1980
Supreme Court decision, Diamond v. Chakrabarty, biotech companies have been
patenting genes and other biological materials.

In Europe, World Trade Organization
agreements protect them.
Violating such patents and agreements brings heavy costs, as
when Monsanto claimed Canadian Percy Schmeiser used RR Canola without a license.
The court fined him Can $20,000. Insisting he had neither planted nor used Roundup
on it, Schmeiser said the RR plants were “volunteers” that blew in from neighbors’

GES-related policies have generated at least four sets of ethical concerns. Scientific
concerns include inadequate GES testing, driven partly by companies’ unwillingness to

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Science and Engineering Ethics, Volume 11, Issue 1, 2005 139
share proprietary information,
and GES research priorities.
Since corporations fund
about 90 percent of GES work, and universities, about 10 percent,
biotechnology typically has not been used to increase crop yields, nutrition, or drought
tolerance but instead for profitable, but risky, pesticide-resistant products. Yet annually
a million children die from nutritional deficiencies. Another 350,000 go blind from
vitamin-A deficiencies. Health concerns, a second worry, include cancer, antibiotic
resistance, fatal allergies,
and unknown effects. Regarding cancer, the US National
Academy of Sciences recently concluded that allowable pesticide residues, on US
foods, will cause a million premature, fatal cancers in the next 75 years.
crops have higher pesticide residues than non-GES, and Roundup’s main ingredient,
glyphosate, has been linked to increases in non-Hodgkins lymphoma.
Other GES
effects are illustrated by the deaths and disabilities caused by food-supplement DL-
tryptophan, produced by a genetically engineered bacterium.
Another health worry is
horizontal gene transfer. Because diseases like Ebola, AIDS, Lyme, and Mad Cow
appear to have moved genetically from animals to humans, some say 20 percent of
GES, with engineered genes from viral pathogens, might create new viral strains
having unknown properties.
Third, GES-related environmental threats include
problems like Roundup’s plant-and-animal toxicity, even at low doses (10 ppm).
crops also cause food-chain biomagnification of pesticides, as when feedlot cattle eat
silage laden with transgenics and high pesticide concentrations.
GES gene transfer, in
the field, has already created herbicide-resistant weeds and extinguished indigenous
Global food sustainability is a fourth concern because GES not only drive
out indigenous species but often produce lower yields. The dominant GES crop, RR
soy, has yields 4-11 percent lower than non-GE soy.
Although developed nations
want the lower labor costs of GES, in the developing world, current GES increase costs
by increasing seed prices, chemical dependence, and unemployment.
By 1999, 12
companies, many with US Department of Agriculture funding, had more than 25
patents to make GES either sterile or chemically dependent.


The most basic ethical argument of those who defend current GES policies (such as
exclusive patents, charging those who use GES, and imposing GES risks without
consent) appeals to property rights. Without GES property (patent) rights, Monsanto,
for example, would have no exclusive, monopolistic rights to use, sell, license, and
manufacture RR Canola, and GES farmers would not be required to pay Monsanto an
annual royalty of at least $15 per acre.
Industries like Monsanto claim property and
patent rights are fair compensation for their biotech-engineering costs. But many
scientists say life forms, like germ plasm and cell lines, should be shared – not
Like environmentalist Aldo Leopold,
they say biological resources are not
private property. Leopold told the story of Odysseus, returning from the Trojan wars,
who hanged many slave girls suspected of misbehavior in his absence. Although we
criticize the Greeks for treating slaves and women as property, Leopold says our
descendants will criticize us for treating land as property.
K. Shrader-Frechette
140 Science and Engineering Ethics, Volume 11, Issue 1, 2005
Should we treat GES mainly as property? Answering convincingly requires
presupposing some common ground on which people of different political persuasions
can agree. That “something” is arguably John Locke’s classic, common-sense account
of property rights. More than any other thinker, Locke is the authority used to justify
patenting biological resources, in part because most common law, the US Constitution,
the Declaration of Independence, Marxists, capitalists – and everyone “in between” –
accept Locke’s view of property.
He argued that labor creates property rights, and
most Locke scholars, like MacPherson, Nozick, and Strauss, say he supports unlimited
appropriation of property, provided it is not acquired fraudulently.
Following Locke
and his dominant interpreters, patent proponents say people have property rights to
GES inventions because they made them and are owed a return on their research
investment. While obviously inventors deserve some such return, this paper argues that
if people correctly understand and accept Locke, they should question current GE
patents. Surprisingly, however, virtually all those who criticize GES patents either
outright reject property-rights defenses of patents, or ignore Locke.
Begging the
question, they fail to help resolve the GES-patent impasse, since most people,
including patent proponents, accept and use (what they say is) Locke’s account. This
paper addresses proponents’ own arguments – on their own terms.
Mark Sagoff, perhaps the only anti-GES-patent philosopher who uses Locke,

employs his distinction – between manipulating an already-created thing, versus
laboring to create it – to argue GES cannot be patented. Yet most patents are for
manipulations of something, not pure creations, so Sagoff’s arguments err in
undercutting most patents. Is there a Lockean argument against current forms of GES
patenting that, unlike Sagoff’s, actually works – one that patent proponents would be
forced to accept, if they are consistent?
The argument here has three main premises. (1) Locke makes all property (thus
GES) subject to requirements of the “original community” and natural law. (2) Locke’s
“first proviso” requires that, when people’s labor creates property rights over resources,
“as much and as good” must remain for others. (3) Because labor cannot give resources
(like GES) their full value, they remain largely common property, subject to
community control.
Locke’s (and the classic) justification for private-property acquisition is the labor
theory: People are entitled to hold, as property, whatever they produce by their labor,
intelligence, and effort.
Locke argues that because people own their bodies, they own
the products of their labor. By “mixing” their labor with goods from the biological
commons, Locke says people can own them, provided two conditions, or provisos, are
met: (1) There is “enough and as good” commons left for others. (2) People use the
property and do not let it waste or spoil. In the early days, when there was enough land
for all, Locke said squatters’ labors established property rights to resources.
inventing money, said Locke, enabled people to exchange resources for metal, to
sidestep his spoilage proviso (2), and thus agree “to disproportionate and unequal
Possession of the Earth.”
While property-rights advocates invoke the
“disproportionate and unequal Possession” claim, they typically forget that Locke still
requires people to meet proviso (1), to leave “as much and as good.”

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Science and Engineering Ethics, Volume 11, Issue 1, 2005 141
According to Locke’s labor theory, need, efficiency, and desert justify acquiring
property rights.
Regarding need, Locke says if labor did not generate property rights,
people would starve while waiting to work out property agreements; regarding
efficiency, people may “have the materials of plenty,” says Locke, “yet for want of
improving it by labour, have not one hundredth part of the conveniencies we enjoy;”
efficiently pursuing needed goods requires property rights generated by labor.
Regarding desert, Locke says laborers merit property rights over things because their
labor created much property value:
“Labour makes the far greatest part of the value
of things, we enjoy... The ground which produces the materials is...but a very small
part of it.”
How should people treat GES, if they accept Locke’s view that labor generates
property rights?
Those who defend the unrestricted-acquisition interpretation
typically argue that Locke’s consent to the use of money (in exchange for labor)
justifies “disproportionate and unequal possession of the earth,” including life forms,
because people can pay others to “work” resources for them.
Thus biotech companies
can pay scientists to engineer genes. They also say Locke’s first proviso (“as much and
as good” left for others) allows unlimited accumulation because large property owners
can compensate those having unequal access to resources.
Thus biotech companies
can compensate those disadvantaged by GES patents. Does this unrestricted-
acquisition argument succeed? It fails, first, because GES companies arguably have not
fully compensated developing nations for unequal access,
especially in a GES market
annually worth several hundred billion dollars;
indeed, developing nations arguably
are worse off because of GES.
It fails, second, because although most Locke scholars
correctly say he justifies private-property rights, beyond what is necessary for
individual use, they ignore his 5 limits on property rights, all of which challenge
current GES patenting: (1) his “law of nature,” (2) his labor theory, (3) preservation;
(4) Christian charity, and (5) virtue. Regarding (4), Locke says children should be
taught to “freely give away what they have,” to avoid acquisition; regarding (5), he
says humans’ desires “for more than they need” is the root of all evil – that love of
domination expresses itself in acquisition, the “first original of most vicious habits.”

Because (4) and (5) are more personally, than policy, relevant, here we consider only

2.1 Locke’s Law of Nature

Locke’s discussion of property begins by emphasizing that preservation is the “law of
nature,” that all the earth is “common” property given by God.
This means he must
explain how common property can become private property. It also means that Locke
scholars, including Harvard’s Robert Nozick, err when they simplify Locke and speak
of “unowned” rather than “common” biological property.
They ignore “the common
state,” the “original community,” in which humans together own Earth’s goods.

Locke says this commons is governed by “the law of reason and common equity….the
law of nature...[which] willeth the peace and preservation of all mankind.”
Even after
people become members of a civil commonwealth, Locke says common properties,
K. Shrader-Frechette
142 Science and Engineering Ethics, Volume 11, Issue 1, 2005
like the “Fish any one catches in the Ocean,”
are governed by the law of “reason and
common equity,” the natural law which “still takes place.”
Although property may
become subject to civil government, Locke says this natural law of “preservation”
continues: Legislators’ “power, in the utmost bounds of it, is limited to the public good
of the society.... The law of nature stands as an eternal rule to all men, Legislators as
well as others.”
Although gene manipulation and patents were centuries away, Locke
warns that “no man could ever have a just power over the life of another, by right of
“The same Law of Nature that does by this means give us Property does
also bound that Property.”
Responding to Locke, GES-patent defenders might say that because people
consented to using money – thus to “unequal possession” of resources;
consent trumps natural law and justifies exclusive property rights.
But such a
response is self-contradictory. In allowing societal law to trump natural law, these
objectors separate the two, thereby losing the Lockean natural-law foundation that
grounds civil law, including property rights. If Lockean natural law disappeared, after
the introduction of societal laws and money, legal property rights could not be
enforced, protected, and amended in a non-arbitrary way. Only if legal property rights
are subject to “reason and common equity” – Locke’s natural law – would there be
rational grounds for securing and correcting them. Something like Locke’s natural law,
undergirding civil law, thus either limits and protects GES property rights, or it does
neither. Rejecting his “natural law” of preservation, reason, and equity – so as to reject
limits on property rights – also requires rejecting rational grounds for protecting those
rights. Besides, there would be no rational way to resolve conflicting legal-property-
rights claims. Moreover, if societal consent alone justified property rights, and if rights
to common resources, like land or genes, required the consent of all, it is difficult to see
why – and how – a majority would consent to unlimited appropriation or to exclusive
private rights over them. If not, something like Locke’s natural law must limit property
rights and justify their societal regulation.
Locke also says that because people live in
society in part to ensure enforcement of natural-law rights, government has natural-law
duties to “regulate the right of property” in ways promoting human preservation.
GES patents threaten Third-World preservation, consistent Lockeans must either
remove the threat, or somehow compensate for it. They have done neither.

2.2 Resource Value and Labor

Another reason to doubt Lockean support for monopolistic property rights (to things
like GES) is that no humans labored to create full GES value. Locke himself claims
that “‘tis Labour indeed that puts the difference of value on everything.”
If so, and if
human labor did not create GES, but only engineered or purified them, it can neither
put all the value on GES nor merit exclusive rights to them. Admittedly Locke
erroneously believed resources on which humans had not labored had little value. But
he also emphasized that some portion of resource value, not created by human labor,
prevents unlimited, labor-based, property rights.
The same is true of GES. As Mill,
Proudhon, and others recognized, owners cannot claim rights to uncreated portions of

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Science and Engineering Ethics, Volume 11, Issue 1, 2005 143
common resources, because their labor did not create them. Proudhon asks: “We want
to know by what right man has appropriated wealth which he did not create, and which
Nature gave to him gratuitously.... The creator of the land does not sell it; he gives it;
and, in giving it, he is no respector of persons.”
Henry George reasons similarly: “If
production give to the producer the right to exclusive possession and enjoyment, there
can rightfully be no exclusive possession and enjoyment of anything not the production
of labor.”
If not, there are no exclusive property rights to GES, as now alleged in
countries like Denmark, Switzerland, and the US.

Even for parts of GES created by human labor, there are property-rights
constraints. To the extent that GES labor is cooperative, inadequately compensated,
traded in a complex economy, or dependent on common resources, it is less private –
less amenable to private-property rights. Ethically flawed market transactions also can
limit GES property rights, just as they limit land title. Almost no title is ethically clean,
without fraud, market manipulation, or conquest by force. In California, land titles go
back to the Mexican government, which took them from the Spanish king, who
received them from the pope, who divided them between Spain and Portugal. Most
resource-property rights go back, “not to a right which obliges, but to a force which
If “force and fraud have reigned supreme” in history,
and if factors like
monopoly tilt GES playing fields, then few alleged owners have completely ethical,
“clean” title to GES. If not, exclusive patents are questionable. Besides, GES work
depends on a common uncreated resource, to which the first proviso gives others equal
opportunity – “as much and as good.” Under this proviso, increasing population and
decreasing resources preclude exclusive property rights, if they thwart others’ equal
opportunity to obtain food and survive. If so, Locke’s natural law, labor theory, and
first proviso limit rights to GES property and patents.

2.3 Patents and Preservation

For Locke, the ultimate limit on property is whether it is used to “increase the common
stock of mankind,”
whether it follows natural law – increases opportunities to
preserve life – and the first proviso (“as much and as good”). He explicitly says
government power is “limited to the public good of the society” and has “no other end
but preservation.... The obligations of the law of nature cease not in society but enforce their observation.

If society must promote the natural law of preservation, policies regarding GES
property and patent rights must satisfy natural-law demands to “preserve all
Such a “preservationist ethics,” however, contradicts standard Lockean
interpretations justifying disproportionate property holdings, even when they harm
others. Obviously the historical Locke gave little attention to limiting property rights to
biological resources, in part because he failed to foresee their scarcity and GES
technologies. Yet Locke’s own words show his account logically requires whatever
limits on property are necessary to “preserve all humankind.”

K. Shrader-Frechette
144 Science and Engineering Ethics, Volume 11, Issue 1, 2005

If the preceding arguments are correct, classic accounts of Lockean property rights,
from MacPherson, Nozick, Strauss, and others, are partially wrong because they ignore
Locke’s first or equal-opportunity Proviso, his preservationist natural law, and logical
consequences of his labor theory.
How might GES-patent proponents respond?
Among many reactions,
perhaps the most important is the low-risk objection (LRO):
Because GES-related risks are low, they are no threat to Lockean preservation of life.

As President Bush put it: “study after study has shown no evidence of danger”; former
Clinton-Agriculture Secretary Dan Glickman alleged: “test after rigorous scientific
test” has demonstrated no proof of GES harm.

Such LRO claims have both ethical and logical problems. Logically, LRO confuses
absence of evidence (for GES-related risks) with evidence of absence. It commits the
fallacy of appeal to ignorance, assuming that failure to prove harm establishes safety.
LRO also relies on a massive category mistake, on what British ethicist G.E. Moore

called the “naturalistic fallacy.” One commits this fallacy by reducing ethical questions
(e.g., ought industries use GES in developing nations without their consent?) to
scientific questions (e.g., are GES-related risks minimal?). This reduction errs in
presupposing that GES issues are scientific, not also ethical – that one need not debate
ethical default rules for behavior under GES-related uncertainty.
Even if GES risks
are low, stakeholders (those affected) have rights to decide whether the risks are worth
the benefits, or whether associated benefits can be realized in alternative ways. By
using the naturalistic fallacy to reframe GES issues as purely scientific, GES
proponents give themselves rights to make allegedly “scientific” decisions for the
people. When GES issues are defined as partly ethical, as affecting welfare, GES
experts and industries have no special rights to decide them. LRO thus succeeds only
if, ahead of time, GES issues are defined via the naturalistic fallacy.
LRO proponents also make problematic assumptions. One is that GE and non-GE
biological materials are essentially equivalent.
Yet given case-specific GES
uncertainties and inadequate testing, this assumption is not obviously true. Another
frequent LRO assumption is that GES-related consequences are innocent until proved
guilty. As Phil Angell of Monsanto put it, in 1999: “Monsanto should not have to
vouchsafe the safety of biotech food. Our interest is in selling as much of it as possible.
Assuring safety is the FDA’s job.”
This assumption is a fallacious appeal to
ignorance. Given GES-related uncertainties, it presupposes GES-related consequences
are harmless; yet uncertainty precludes knowing, one way or the other. Given
uncertainty, instead society must choose ethical default rules for GES. Patent
proponents also often assume GES-related threats include only immediate, easily
observed fatalities. If they see no acute effects, they assume there are no problems.
This is like what physicist Hal Lewis (1990) did, when he ignored latent cancers from
radiation exposure and said the Chernobyl nuclear accident caused only 31 deaths.
Award-winning philosopher Larry Laudan made the same Chernobyl claim.
Yet even
the pro-nuclear US Department of Energy puts short-term Chernobyl deaths at 30,000;
members of the medical community say Chernobyl-induced, premature, long-term,

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Science and Engineering Ethics, Volume 11, Issue 1, 2005 145
statistical casualties will reach 475,000.
GES proponents make similar errors if they
fail to test GES adequately, observe no immediate fatalities, then proclaim its safety. If
they follow the procedure of “don’t look, don’t find,” they beg the question of GES-
related safety. They also assume only risk magnitude, not also democratic consent,
determines patent acceptability. If patents put people at risk, they have consent rights.


If current policies regarding GES patents fail to meet classic Lockean requirements,
like the first proviso, how might they be improved? In general, nations like Canada and
the US could follow some of the safeguards already enacted in the EU.
To avoid the
naturalistic fallacy and to meet LRO, one might promote labelling GE food, a policy
not followed in the US;
guaranteeing case-by-case, industry-financed GES risk
assessments; and ensuring that assessors and stakeholders ethically deliberate about
GES default rules, like the precautionary principle.
To promote recognition of
Locke’s preservationist natural law, GES patent-holders could develop and donate
biotechnologies for Third-World use, sell GES-related herbicides there at lower profit
margins, and help train Third-World scientists and attorneys in biotechnology, public
health, and intellectual property. They also could disavow “terminator” biotechnology,
antibiotic-resistance genes, and using GES patents in developing nations without
stakeholder consent.
To promote recognition of Locke’s labor theory, government could allow
biotechnology/chemical companies only limited “use rights” (not exclusive patent
rights) to GES, require compensation to stakeholders for GES-related risks, and have
companies share profits from special varieties of GES (such as basmati rice or jasmine
rice) with their countries of origin. Use rights might restrict GES profits to some plus-
cost percentage. They might be interpreted, in part, through GES stakeholder-review
boards, analogous to citizen boards currently used to help regulate hospitals and
utilities. Regarding the first Proviso (“as much and as good”), universities, government,
and industries could fund comprehensive health, environmental, economic, ethical, and
political assessments – necessary for compensating GES-related harms, especially in
developing nations. Taxes on GES-patent revenues would be one way to raise such
research funds.
Practical strategies for implementing GES-related ethical reforms obviously need
to be worked out in detail, by the practitioners and those affected. But their general
goal is what Gordon Conway
calls the “Doubly Green Revolution.” It aims at not
only economic and agricultural success, but also environmental and ethical progress. If
preceding arguments are right, this revolution requires citizens and GES patent holders
to implement the very Lockean property rights they already claim to accept.

K. Shrader-Frechette
146 Science and Engineering Ethics, Volume 11, Issue 1, 2005

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